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Victoria's Legislative Council and the Constitution (Parliamentary Reform) Act 2003 - paper presented by Ms Monica Gould, President of the Legislative Council, Victoria

Victoria’s Upper House, or Legislative Council as we call it, has recently been the subject of substantial reform as a result of the Constitution (Parliamentary Reform) Act 2003. This Reform Act introduced the most far-reaching changes to Victoria’s parliamentary system since its establishment in 1856.

The Act changes go to the role of the Upper House, the relationship between the two Houses of Parliament, and the processes for future constitutional reform. The Reform Act saw the culmination of many decades of effort by advocates for the reform of Victoria’s parliamentary system, and was passed following a State election in November 2002. This election returned the Bracks Labor Government with a greatly increased majority in the Lower House, and also produced, for the first occasion other than for a short period in 1985, a Labor Party majority in the Upper House. The Reform Act was subsequently passed in March 2003.

This paper will begin by outlining what critics of the past considered to be the weaknesses of Victoria’s Upper House. I will then move on to briefly discuss earlier attempts to abolish or reform the Upper House, before turning to the changes introduced under the new Act.

Criticism of the Legislative Council

The potential abolition of the Legislative Council, or significant reform of it, has been a contentious issue in Victorian politics for generations. From the time the Legislative Council was established in 1856 as a check on democracy’s ‘excesses’, the House has been criticised as being a conservative, elitist and, at times, unreasonably obstructive institution. Although the Council had clearly changed a great deal from when it was created in the nineteenth century, many argued, particularly on the Labor side of politics, that further change was required.

There have been a number of often-expressed concerns about the Legislative Council, which I will briefly outline.

1. One perceived concern was about the Legislative Council’s power to block Supply. This power has been exercised on 10 occasions, the last time in 1952 when the McDonald Country Party Government lost office. Supply has also been delayed or threatened on a number of other occasions, such as in 1965 when the Bolte Liberal Government, had its budget delayed for 24 hours. This provoked a hostile reaction from the then Premier, Henry Bolte, who stated:
      ‘I do not think it [the Council] could be got rid of overnight; one would have to whittle it down gradually’.

2. The second criticism centred on the Legislative Council’s lack of accountability to the electorate, as a result of the infrequent and staggered election of its members. Until 1961, Legislative Council elections were not even held on the same day as Legislative Assembly elections. After 1961, concurrent elections for both Houses occurred, although Legislative Councillors continued to serve fixed six year terms with only half of the Council facing the voters at each election. This latter provision remained intact even after further reforms in the mid 1980s resulted in Legislative Councillors being elected for two terms of the Assembly (up to 8 years).

Critics have also objected to the Legislative Council effectively having a ‘stale’ mandate. This was said to result from only half of the House’s membership being up for election at the time of each general State election, and with the other half of the Council’s members having won their seat years earlier. On occasions, this created situations where the Legislative Assembly, fully elected at the previous election, has had legislation blocked by an Upper House which has only partly reflected the public’s current views.

3. The failure of Victoria’s Constitution to provide a practical way of settling deadlocks between the two Houses has been another contentious issue. While deadlock provisions existed, these were very complicated and, therefore, not used. For example, provisions that took account of Bills of Special Importance and the early dissolution of the Assembly if such a Bill was twice rejected by the Council, came into effect in 1985 but were never invoked.

4. Another perceived weakness of the Legislative Council related to the use of preferential voting, rather than proportional representation. This resulted in the major parties dominating at the expense of small parties and independents - in fact, no minor parties (unless we include the National Party) or independents have ever held a seat in the Legislative Council. At the same time, representation of major parties in the Council has often not been in proportion to their share of the vote. For instance, in elections for the Legislative Council in 1999 the ALP attracted 42.2% of the primary vote yet gained only 36.3% of the available seats, while the Liberal Party won 50% of the seats having attracted only 39.7% of the primary vote. In the case of the National Party, 7.2% of the primary vote was sufficient to secure 13.6% of the available seats, yet the Australian Democrats failed to win a seat with 6.8% of the primary vote.

Past attempts to abolish or reform

The view that the Legislative Council should be abolished entirely was one held by the Labor Party for many years. This was reflected in Legislative Council abolition bills introduced into the Upper House by the Labor Opposition in March 1959, April 1976 and June 1979. On each occasion these bills were defeated overwhelmingly by the non-Labor majority.

Then from 1979 and 1983, although the Labor Party did not abandon the idea of abolition, it also adopted an alternative approach in the form of a Constitutional (Council Powers) Bill, intended to remove the Upper House’s capacity to force the government to an election by blocking Supply. This was pursued by John Cain both in Opposition and later as Premier. Despite several attempts, this Bill was unsuccessful.

In 1983, Labor Party policy changed from abolition to reform, in particular to include proportional representation. In May 1984 legislation was introduced into the Lower House which went part of the way to achieving Labor’s aim of preventing the Council from blocking supply. The Constitution (Duration of Parliament) Bill provided for minimum terms (except in exceptional circumstances) for the Assembly of three years and a maximum of four years, with Legislative Councillors serving for two terms of the Assembly. The Bill was eventually passed by the Council in September 1984 and had the significant effect of removing much of the incentive for the Upper House to block Supply in a Parliament’s first three years as this was unlikely to lead to a general election.

On winning office in late 1999, the Bracks Labor Government attempted to achieve further parliamentary reform through two bills which would have reduced Legislative Councillors’ terms to the same as those of Assembly Members and would have established proportional representation as the voting system used in Legislative Council elections. These bills were defeated in the Council in October 2000.

Most recent reform process

The Bracks Government’s response to the Council’s rejection of its two reform bills was to establish the Constitution Commission Victoria in March 2001. The Commission’s role was to examine the legislative reforms required to enhance the Legislative Council’s effectiveness as a House of Review, as well as to consider other issues associated with parliamentary reform.

The Commission was chaired by former Supreme Court judge, Professor George Hampel QC. The other Commissioners were former Liberal Party parliamentarians: Ian Macphee, who had been a Federal Cabinet Minister, and Alan Hunt, a former President of Victoria’s Legislative Council, as well as Leader of the Government and Leader of the Opposition in that place. The Commission consulted with the public, community groups, academics and current and former parliamentarians. It conducted public consultation sessions and seminars.

The Commission’s recommendations formed the basis of the Constitution (Parliamentary Reform) Act that was introduced into the Victorian parliament in October 2002, but at that time it did not receive the required statutory majority in the Lower House.

Subsequently, after the November 2002 state election, the Reform Bill was reintroduced and finally passed by the Legislative Council on 27 March 2003. (It was assented to on 8 April 2003.)

I will now outline some of the key features of the Reform Act.

(A) Supply

The Act has explicitly removed the Legislative Council’s power to block Supply. The Legislative Council can scrutinise appropriation bills and even propose amendments to these. However, if an annual appropriation bill has not been passed by the Council within one month of having passed the Assembly, the Bill must be presented to the Governor for Royal Assent.

(B) Fixed four year terms

In addition, the previous 8 year terms of Upper House members have been reduced to 4 years, with fixed terms introduced for both Houses of Parliament and elections held on the last Saturday in November every four years. A fixed four year term can only be altered in exceptional circumstances which are prescribed in the Constitution. In either circumstance, the Legislative Council exists only until the Legislative Assembly is dissolved, when all of the Legislative Council also faces election.

(C) Deadlocks

As I mentioned earlier, Victoria’s Constitution previously lacked a satisfactory mechanism for settling deadlocks between the Houses. I’ve already referred to the removal of the Legislative Council’s power to block Supply. In the case of ordinary, non-appropriation bills, a dispute resolution process has been introduced. This establishes a Dispute Resolution Committee after each State election, which consists of Members from both Houses and reflects Parliament’s political composition.

The Dispute Committee’s task is to attempt to find a solution to an impasse if the Legislative Council rejects a bill. If this process fails, the deadlocked bill can become a ground for a double dissolution, or else that bill can be held over until the next general election. In either case, if the bill is again passed by the Assembly it can be returned to the Council. If the bill is not passed by the Council within two months, a joint sitting of both Houses can be convened where a majority of the total number of Members of both Houses is required for the Bill to be passed.

(D) Electoral System

The Constitution (Parliamentary Reform) Act 2003 has also introduced proportional representation to Legislative Council elections.

The Council’s current 22 Provinces (with two Members in each Province) will be abolished, and replaced by 8 electoral Regions with 5 Members in each Region. As a result, membership of the Council will be reduced from 44 to 40 from the next election in 2006. These changes will give greater Upper House representation to the range of political views within each Region.

A number of other electoral reforms have also been introduced. These include:
  • giving voters a choice between above and below the line voting;
  • the adoption of optional preferential voting (below the line); and
  • a requirement for candidates to disclose their place of enrolment on the ballot paper.

A further reform concerns my role, as President, within the Chamber. As proportional representation is likely to produce a Legislative Council with more diverse representation, including minor parties and independents, and therefore the greater likelihood of no party having a clear majority, the President’s voting status will change. As is the case in the Australian Senate, the President will have a deliberative vote but will no longer be able to exercise a casting vote.

(E) Other reforms

The Reform Act has also introduced a number of reforms that do not specifically relate to the Legislative Council. The most significant of these concerns the processes by which Victoria’s Constitution can be altered. Previously, any constitutional reform could occur simply through the passage of legislation, although some bills required an absolute majority of the total number of the Members of each House. The new Act has established core provisions within the Constitution which can only be changed through a referendum. These provisions include:
  • the number of Members and the quorum of both Houses of Parliament;
  • the Legislative Council’s loss of the right to block Supply;
  • the dispute resolution process for Deadlocked Bills;
  • recognition of local government as an essential tier of government ; and
  • continuance of the Auditor-General, Director of Public Prosecutions, Ombudsman and Electoral Commissioner as independent officers of the Parliament.

In addition, a number of procedural provisions of the Constitution can now only be passed through a ‘special majority’ of Parliament consisting of 60% of the total number of Members of both Houses. These provisions include those related to Parliament’s prorogation, dissolution and powers and eligibility requirements for Members and voters.

As a result of these many changes, the Constitution (Parliamentary Reform) Act 2003 signals a significant shift for Victoria’s parliamentary system.

The Reform Act has removed the Legislative Council’s ability to force a Government to an election by blocking Supply, and provided a sensible means of trying to resolve deadlocks through the Dispute Resolution Committee. The Act has also enhanced the democratic process through the introduction of proportional representation for Legislative Council elections, which will almost certainly result in a more diverse, and therefore more representative, Council. This should also assist the Council to be a more effective House of Review.

The establishment of core provisions in the Constitution which can only be changed with the people’s agreement at a referendum, rather than simply by a government that has a majority in both Houses, is another democratic advance for Victorians. On this basis, I consider that these recent reforms have been a genuine step forward for parliamentary democracy in Victoria.

Questions for discussion
  1. What appears to be the future of parliamentary reform in your legislatures? Are any reform measures under serious consideration at present?
  2. What process exists in your Parliament for dealing with deadlocked bills? Do you think the process could be enhanced through the adoption of a mechanism such as a Dispute Resolution Committee?

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